Forgotten Law (Part 2)

A couple of weeks ago, in my first post in this series, I looked at all Acts of Parliament passed in the first session of the 2010–12 Parliament to see how much had been commenced and, more importantly, how much had not.

The results were disappointing but unsurprising. Ignoring the finance and money-related Acts, 11 of the 34 Acts — one third — had not been fully brought into force five years later. In two cases — the Health and Social Care Act 2012 and the Welfare Reform Act 2012 — a range of confusing commencement orders and a lack of any clear timetable for implementation from the government make it almost impossible (and extremely time-consuming) to work out which parts are in force and which aren’t (or will never be).

Being the kind soul that I am, I have given the government a second chance and repeated the exercise for the second session of that Parliament which lasted from May 2012 to May 2013 and which delivered 38 Acts. This review, which can be found here, found that:

  • 3 finance and money-related Acts came into force immediately upon royal assent.
  • 10 non-money Acts also came into force immediately upon royal assent (or, in one case, the day after).
  • Of the remaining 25 Acts: 20 are fully in force, 2 only have minimal provisions which have not yet been brought into force; 2 have a small but significant number of provisions which have not yet been brought into force; and 1 has a large number of provisions which have not yet been brought into force.

Overall there is a slight improvement in the proportion of the Acts brought into force. But,as with the first review, whilst there are understandable reasons why certain provisions have not been brought into force, in the majority of cases, there has been no reason given by the government as to why it is not (or not yet) bringing certain provisions into force. A simple provisional timetable, regularly updated as and when circumstances or timetables change, published alongside the Act when it receives royal assent would be of enormous benefit to those who will be affected by the law.

Now, in my first post, I was critical of the government for producing unhelpful commencement orders, for not drafting legislation in a way which would make clearer when provisions came into force, for not bringing provisions into force in their entirety or for all purposes, for not announcing (even provisional) dates for when legislation would be brought into force, and for leaving uncommenced provisions unrepealed.

Some of the comments on Twitter on my blog post also highlighted the fact that uncommenced provisions raised a constitutional problem. Parliament has passed legislation with the intention, at least at the time of its passage, that it will come into force. Despite this, government ministers invariably had huge discretion as to whether (if at all) to bring it into force.

How is this tension resolved? Perhaps the problem lies with Parliament and its failure to be clear enough on when the Act should be commenced. A typical Act of Parliament will deal with commencement in three ways:

  • A small number of general provisions (such as the short title and the Act’s extent) will come into force upon royal assent;
  • Some provisions (usually not many) will come into force on a specified date (usually two or three months after royal assent); and
  • The rest will come into force “on such day as the Secretary of State may appoint by regulations made by statutory instrument”.

Is that commencement power on the Secretary of State a mandatory one that must, at some point, be exercised? Or is it entirely discretionary? Parliament has not, after all, said that the provisions “shall come into force on such day or days as the Secretary of State shall, within six months, appoint by regulations”. But Parliament has also been clear that the provisions “come into force” rather than, for example, saying that they “may come into force”. The flexibility in commencement masks potential ambiguity on what Parliament is requiring from government ministers.

As the fantastic Rich Greenhill pointed out, in R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] UKHL 3, the House of Lords provided some guidance on this issue, concluding that commencement powers are not mandatory and that there is no duty on the Secretary of State to bring all provisions into force. Nor, however, is the discretion absolute: the Secretary of State has a duty to keep under consideration the question whether or not to bring provisions into force and to exercise that duty in good faith. However, it is almost impossible for that duty to be enforced, and the only clear occasion when an individual will be able to challenge the government appears to be where a minister seeks to use other powers (such as the royal prerogative) to thwart clear legislative provisions, even if uncommenced.

During the 2015–17 Parliament, the Constitution Committee of the House of Lords launched an inquiry into the legislative process. One of the four issues within the inquiry was “the period after Royal Assent”. I very much hope that the Committee decides to continue with this inquiry following the general election, and to include a review of the commencement of legislation as part of it and to look at some of the issues I’ve raised in these posts.

If you’re interested in the full review, you can read the findings here and a table of all legislation passed between May 2012 and May 2013 detailing the extent to which it is in force and how long it took here.